Terms and Conditions
Unless otherwise agreed to by the parties, the E-Mailing Services Agreement will commence on the Effective Date and continue on an annual basis.
For purposes of this Agreement, the following definitions shall apply:
1.1 "BIGLIST" shall mean BIGLIST Inc., a corporation organized and existing under the laws of the State of Pennsylvania.
1.2 "E-Mailing Services" shall mean set-up and administration of one or more e-mailing lists, wherein list members voluntarily subscribe to the e-mailing list(s).
1.3 "Customer Data" shall mean all Customer preferences, list member e-mail addresses, scheduled messages, or other data entered into the Physical Server (defined below).
1.4 "List Server" shall mean the data storage and software services provided to the Customer, including, but not limited to, the mail sending services and the list member list administration service.
1.5 "Physical Server" shall mean the serving computers, hardware and operating system, and software necessary to operate and support the List Server in accordance with this Agreement.
1.6 "Customer Account" shall mean administrative access to Customer Data residing on BIGLIST's List Server.
2.1 BIGLIST shall perform E-Mailing Services for Customer during the term of the E-Mailing Services Agreement.
2.2 Continuous Connection. BIGLIST will provide connection of the List Server to the Internet, including all telecommunications equipment and connections for the List Server to provide access on a 24-hour-a-day, 7 day-a-week basis, with the exception of scheduled maintenance outages and interruptions to the server connection and access beyond BIGLIST's control caused by, for example, acts of nature, third-party equipment or transmission failures, security breaches, or equipment failure.
2.3 Change of Service. BIGLIST reserves the right to change without notice the BIGLIST service, including, but not limited to, e-mail delivery methods, list management software, commands, access procedures, and appearance.
2.4 Stored Information. BIGLIST reserves the right in its sole discretion to delete any information entered into the List Server by Customer. BIGLIST reserves the right to retain any e-mail address that reaches its Physical Server in the course of providing and for the purposes of optimizing its E-Mailing Services. This includes, but is not limited to, monitoring the List Server and honoring preferences of the e-mail address owner regarding inclusion or exclusion from e-mail lists hosted by BIGLIST.
2.5 Privacy of Recipients' E-Mail Addresses. BIGLIST will not intentionally divulge list members' e-mail addresses to third parties without prior express consent. However, Customer may choose to configure Customer's list(s) so as to make available list members' e-mail addresses.
2.6 Unsubscribe Instructions. BIGLIST reserves the right to include or require inclusion of instructions for unsubscribing from any list in any e-mail message.
2.7 Subscription Confirmation. BIGLIST reserves the right to require active confirmation or authentication of requests to subscribe to any list.
2.8 BIGLIST Performance Monitoring E-mail Addresses. From time to time, and with customer consent, BIGLIST may add one or more e-mail addresses to Customer Lists to monitor its E-Mailing Services.
3.1 Customer Data. Customer is ultimately and solely responsible for the backup of Customer Data. BIGLIST is not responsible for Customer Data.
3.2 Hardware, Equipment, and Software. Customer is responsible for and must provide all telephone, computer, hardware, and software equipment and services necessary to access BIGLIST. BIGLIST makes no representations, warranties, or assurances that Customer's equipment will be compatible with BIGLIST's services.
3.3 Subscriber Removal. Customer will promptly remove any list member from Customer's BIGLIST e-mailing list upon the list member's request to be so removed.
3.4 Compliance with No Spam Policy. Customer will comply with the BIGLIST No Spam Policy http://www.BIGLIST.com/contract/nospampolicy, which is incorporated herein in its entirety.
3.5 Password Security. Customer is responsible for all use of Customer's E-Mailing List(s) and confidentiality of all Customer's password(s). BIGLIST will suspend access or change access to Customer's E-Mailing List(s) immediately upon notification by Customer that Customer's password has been lost, stolen, or otherwise compromised. BIGLIST is not liable for any usage and/or charges prior to BIGLIST making the necessary account alteration.
4.1 Payment. In consideration of the E-Mailing Services provided by BIGLIST under the E-Mailing Services Agreement, Customer agrees to pay BIGLIST according to prices advertised on the BIGLIST web site or otherwise agreed to by BIGLIST and Customer. Customer will be given 30 days e-mail notification of any price changes. Service Fees for the E-Mailing Services will be sent periodically, and Customer agrees to submit payment within 30 days from the date of the invoice. Failure to use this service does not relieve Customer of payment obligations.
4.2 Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty, and any other taxes assessed with respect to the E-Mailing Services provided under the E-Mailing Services Agreement.
4.3 Cancellation. Customer may cancel this Agreement at any time and for any (or no) reason. In the event Customer cancels service, BIGLIST reserves the right to charge Customer in full for the entire month in which service was canceled. In the event Customer elected to prepay subsequent, additional months' Service Fees, BIGLIST reserves the right to charge Customer an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to Customer.
4.4 Breach. In the event BIGLIST terminates this Agreement because of a breach of the terms of the Agreement, Customer will be charged in full for the entire month in which the breach occurred. In the event Customer elected to prepay subsequent, additional months' Service Fees, BIGLIST reserves the right to charge Customer an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to Customer.
5.1 BIGLIST performance. BIGLIST represents and warrants that its E-Mailing Services shall be performed in a professional and workmanlike manner.
5.2 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE IN SECTION 5.1, BIGLIST MAKES NO WARRANTY RELATING TO THE SUBJECT MATTER OF THE E-MAILING SERVICES AGREEMENT. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.3 Risk. BIGLIST's E-Mailing Services are provided on an "as is" and "as available" basis. Customer expressly agrees that use of BIGLIST's List Server is at Customer's own risk. Neither BIGLIST, BIGLIST's employees, affiliates, agents, third-party information providers, merchants, licensors, or the like, warranty that BIGLIST's E-Mailing Services will not be interrupted or error free; nor does BIGLIST make any warranty as to the correctness of information sent from BIGLIST's E-Mailing Services, or the resulting recipients of said information, unless otherwise expressly stated in the E-Mailing Services Agreement.
5.4 Customer's Compliance with Law. Customer represents and warrants that Customer will comply with all applicable local, state, and federal laws in Customer's performance of this Agreement and in the use and operation of the List Server, including laws governing technology, software, spam, intellectual property, copyrights, trademarks, trade secrets, and other proprietary rights. BIGLIST will not be responsible for monitoring content on or sent via the List Server to determine compliance with applicable laws. In the event that Customer's performance of this Agreement is not used in accordance with all applicable laws, BIGLIST shall cooperate with all or any law enforcement agencies.
5.5 Authority to Contract. Customer represents and warrants that Customer has full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
6.1 Under no circumstances, including negligence, will BIGLIST, BIGLIST officers, agents, or anyone else involved in creating, producing, or providing BIGLIST's E-Mailing Services be liable for any direct, indirect, incidental, special, or consequential damages that result from the use of or inability to use BIGLIST's E-Mailing Services. BIGLIST will further not be liable for results from the transmission of viruses, mistakes, omissions, interruptions, deletions of files, errors, defects, delays in operation or transmission, or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to BIGLIST's records, programs, or services. Customer acknowledges that this paragraph shall apply to all content on or sent via the List Server.
6.2 Customer's exclusive remedy for all damages, losses, and causes of action whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which Customer paid during the 1-month period prior to the date the cause of action arose, or (b) include any incidental, consequential, extemporary, or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings, or revenue.
7.1 Breach or Default. The following constitute a breach or default of this Agreement:
(i) Customer's failure to pay the current payment period's Service Fee by the thirtieth day after the date of the invoice.
(ii) Customer's violation of any of the terms and conditions herein.
7.2 Activities Subject to Immediate Deactivation. Any List Server or other BIGLIST resource that is used for Illegal or Improper Activity may be immediately deactivated by BIGLIST without notice to Customer. Illegal and Improper Activities include, but are not limited to, pornography, violations of privacy, hacking, spreading computer viruses, and distributing any harassing or harmful materials, as determined by BIGLIST. Improper Activities also include any reference to BIGLIST, BIGLIST's E-Mailing Services, and/or BIGLIST's web site in any unsolicited mass e-mailing or in any public forum which is off-topic or excessively posted (i.e., approximately 20 or more posts), including, but not limited to, Internet newsgroups, bulletin boards, and chat rooms. Customer agrees to indemnify and hold BIGLIST harmless from any claim resulting from Customer's publications or use of Illegal or Improper materials. Although BIGLIST will make reasonable efforts to alert Customer to such activities and allow Customer an opportunity to cure them within a 24-hour period after discovery, BIGLIST is not required to give notice before deactivating Customer's use of BIGLIST E-Mailing Services if, in BIGLIST's discretion, Customer's use is or results in Illegal or Improper Activities. If a List Server is disabled, the regular Service Fees still apply.
8.1 Ownership Rights. All right, title, and interest in the Customer Data shall be solely owned by the Customer. BIGLIST owns or has licensed all server software.
8.2 Public Nature of Internet. All information submitted on the List Server shall be considered publicly available. Customer should arrange with BIGLIST regarding protecting important and/or private information. For example, BIGLIST shall not be liable for protection or privacy of messages, e-mail addresses, or other information transferred through the Internet or any other network provider that Customer may use.
8.3 Modification of Terms and Conditions. BIGLIST may modify these terms and conditions upon e-mail notification and notice published on the BIGLIST web site. Customer's use of BIGLIST services after such notice shall constitute Customer's acceptance of the modifications to this Agreement.
8.4 Non-enforcement of any section of this Agreement does not constitute consent, and BIGLIST reserves the right to enforce this Agreement in its sole discretion.
8.5 If any one or more provisions in this Agreement is found to be unenforceable or invalid, all other provisions shall remain valid.
8.6 Assignment. BIGLIST may assign this Agreement, its rights hereunder, and its ownership of said service and commitment at anytime without notice.
8.7 Server Processes. BIGLIST reserves the right to terminate or change priority of any process started by Customer.
8.8 The E-Mailing Services Agreement is the sole agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations, or communications, oral or written, of either party. The E-Mailing Services Agreement may be amended only by an instrument executed by the authorized representatives of both parties.
8.9 The E-Mailing Services Agreement shall be deemed performed in its entirety in the State of Pennsylvania and shall be interpreted in accordance with the laws thereof.
8.10 Damages. BIGLIST reserves the right to collect damages (software, hardware, and man hours) if any harm is done to BIGLIST which requires repair or reconfiguration of any kind.